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Court: Judge exceeded authority in removing prosecutor from case

By John LyonArkansas News Bureau

LITTLE ROCK — A Phillips County circuit judge exceeded his authority when he removed an elected prosecuting attorney from a case and appointed a special prosecutor in his place, the state Supreme Court ruled Thursday.

In a unanimous decision, the high court said Judge L.T. Simes erred in disqualifying Prosecutor Fletcher Long from the case of Tony Bernard Smith, who was charged in an April 28, 2011, robbery in which Michael Campbell was killed.

Smith was charged with capital murder and aggravated robbery and was scheduled to be tried starting May 15 of this year. After plea negotiations on that date failed, Long filed a motion to nolle pros, or decline to prosecute, the case because the state’s eyewitness was unavailable.

Simes took the motion under advisement. On Aug. 16, he disqualified Long as prosecutor in the case and appointed Ronald L. Davis Jr. as a special prosecutor. Simes declared that Long had failed in his duty to diligently pursue the case.

Smith petitioned the Supreme Court for a ruling that Simes had exceeded his authority, and for an order releasing Smith from jail and removing Simes from the case because he had shown bias against Smith.

In its ruling Thursday, the Supreme Court said Arkansas Code Annotated 16-21-112(a) allows the appointment of a special prosecutor “if any prosecuting attorney neglects, or fails from sickness or other cause, to attend any of the courts of the district for which he was elected to prosecute as required by law.”

The high court found that filing a nolle pros motion did not constitute neglect.

“The record fails to demonstrate that Long neglected or failed to attend court and prosecute as required by law in the case brought against Smith,” Justice Karen Baker wrote in the court’s opinion.

The court denied Smith’s request for an order freeing him and removing Simes from the case, saying Smith had not shown that he was illegally detained and that the issue of bias had not been raised previously.